Ontario housing activists were disappointed by a December ruling from the Ontario Court of Appeal. In a 2-1 decision, the court decided that the pleadings in Tanudjaja v Canada,2014 ONCA 852 [Tanudjaja], did not present the bench with a justiciable issue, upholding a lower court decision to strike the application.

The application had asked the court to decide, in essence, whether adequate housing is a positive right under s. 7 and s. 15 of the Charter. It stated that changes to legislation, policies, programs and services by the Canadian and Ontario governments have led to inadequate housing and increased homelessness, which breach the s. 7 right granting citizens the “right to life, liberty and security of the person” and breach the s. 15 right of protection against discrimination. The application presented the court with a 16-volume evidentiary record to support its claim. The record was almost 10,000 pages long, and included 19 affidavits, 13 of which were from experts.

History

The appellants began this case when they brought an application in the Ontario Superior Court against the governments of Ontario and Canada. The appellants included four individuals in unstable housing situations and a public interest group–Jennifer Tanudjaja, Janice Arsenault, Ansar Mahmood, Brian Dubourdieu and the Centre for Equality Rights in Accommodation.

The Attorney General of Canada and the Attorney General of Ontario then brought motions to strike the application. The motion judge, Lederer J, allowed the motions. He wrote: “There is no positive obligation raised by the Charter that requires Canada and Ontario to provide for affordable, adequate, accessible housing” (para 71). The appellants then brought the case to the Ontario Court of Appeal.

Issue

The appellants asked the Ontario Court of Appeal to overturn the lower court finding that they had no reasonable cause of action. The Court of Appeal considered whether the claim – that changes instituted by Canada and Ontario had had the effect of increasing homelessness and inadequate housing – could in fact constitute a breach of Charter rights under s. 7 and s. 15 and therefore, be considered a reasonable cause of action.

Analysis of the Majority

The majority agreed with the lower court decision in finding that the challenge brought before the bench could not succeed. Pardu JA, who wrote the Appeal Court’s majority decision, noted that Charter challenges under s. 7 and s. 15 typically offered a challenge to a specific law or specific application of a law, instead of pointing to a complex matrix of policies and programs as discriminatory, as Tanudjaja does. Pardu added, though, that

“[t]his is not to say that constitutional violations caused by a network of government programs can never be addressed, particularly when the issue may otherwise be evasive of review” (para 29).

In process, Pardu considered Gosselin v Quebec (Attorney General),[2002] 4 SCR 429 [Gosselin], and Chaoulli v Quebec (Attorney General),[2005] 1 SCR 791 [Chaouilli], two important Charter cases. In Chaouilli, the Supreme Court found that a lack of access to health care choices and long wait times combined to breach the Quebec Charter of Human Rights and Freedoms, CQLR c C-12, right to security of person. In Gosselin, there was an important discussion by McLachlin CJ about the potential conditions under which the court could recognize positive rights under s. 7. Historically, the courts have only recognized negative rights.

Because the majority in the Court of Appeal in Tanudjaja agreed with the lower court’s reasons, it did not consider the whether positive obligations could be placed on governments nor did it look at the possibility of using homelessness as a ground for discrimination:

“Given that this application was properly dismissed on the ground that it did not raise justiciable issues, it is not necessary to explore the limits, in a justiciable context, of the extent to which positive obligations may be imposed on government to remedy violations of the Charter, a door left slightly ajar in Gosselin v. Quebec, 2002 SCC 84, [2002] 4 S.C.R. 429. Nor is it necessary to determine whether homelessness can be an analogous ground of discrimination under s. 15 of the Charter in some contexts. (para 37)”

The majority decision did, though, it its discussion, recognize the possibility that, on different case, those points could be considered by the court.

Analysis from the Dissent

In her dissent, Feldman JA wrote that it was an error of law of the motions judge to strike this claim at the pleadings stage. She argued that, at that stage, it was too early to decide whether the circumstances of the case would be special enough for the court to be able to grant positive rights because such an assessment requires the court to consider the full record of the case. She stressed that

“a claim should not be struck out at the pleadings stage unless it has no reasonable prospect of success, taking the facts pleaded to be true” (para 49).

In her dissent, she outlines four problems she finds with the motion judge’s decision:

1) he misunderstood the appellants’ s. 7 claim and stated it in an overly broad manner;
2) he erred in stating that the s. 7 jurisprudence on whether positive obligations can be imposed on governments to address homelessness is settled;
3) he erred in purporting to define the law in a critical area of Canadian jurisprudence on a motion to strike; and
4) most importantly, he erred in concluding that the issue of whether the appellants had a potential claim under s. 7 could be decided without considering the full evidentiary record (para 52).

Conclusion

The appellants are now seeking leave from the Supreme Court of Canada to appeal this decision. Whether or not leave is granted, homelessness in Canada is an issue that needs to be addressed at some level, and politicians are failing to deal with it. While it is not the role the court to make policy decisions, it is the role of the court both to uphold justice and to help reflect societal thinking about what justice means. Mounting evidence shows how homelessness can help perpetuate the cycle of poverty and mental illness for vulnerable individuals. Both the reasons of the majority and the dissent in Tanudjaja show ways that the courts can continue to have this important discussion.